38 W.Va. 89 v. Otto

• Decision Date: 11 November 1893
• Citation: 18 S.E. 378
• Parties: 38 W.Va. 89 CXATOR. v. OTTO.
• Court: West Virginia Supreme Court

18 S.E. 378

38 W.Va. 89CXATOR.

v.OTTO.

Supreme Court of Appeals of West Virginia.

Nov. 11, 1893.

Parol Evidence—Landlord and Tenant—Termination of Lease.

1. in order to exclude evidence of oral agreement on the ground that the parties later entered into a written contract, the oral agreement must relate to the same agreement embodied in the written contract.

2. Where a lease provides that for nonpayment of rent the lease shall be forfeited and surrendered on 10 days' notice, and the lessor demands rent in arrear, and the lessee does not demand notice and pay, but agrees to end the term and surrender his lease, though there was no other notice, the tenancy is thereby ended, and the lessor becomes entitled to possession.

(Syllabus by the Court.)

Error to circuit court, Ohio county.

Action by John E. Clator against Charles Otto. Plaintiff had judgment, and defendant brings error. Affirmed.

W. W. Arnett and Denis O'Keeffe, for plaintiff in error.

B. B. Dovener, for defendant in error.

BRANNON, J. Clator brought an action before a justice of Ohio county for unlawful detention of certain premises in the city of Wheeling against Otto. The case was appealed to the circuit court, and, Clator recovering judgment there, Otto has brought the case here. By one deed of lease Clator leased Otto a certain house for three years, and by another, made later, he leased Otto an adjoining house for two years.

Otto's first assignment of error is that the court refused to exclude from the jury testimony of conversation between Clator and Otto tending to show a surrender of the leases by Otto, and this is based on the idea that what is called a written assignment was made between them shortly after this conversation, and that their negotiation resulted in that, and the prior oral agreement merged in it, and the writing speaks the entire contract. This writing and the agreement to surrender were separate matters. Otto owed Clator a large amount of rent in arrear, and, unable to pay, he assigned to a trustee, not the leases, but liquors, furniture, and other personalty, with power to continue the saloon and restaurant business until the trustee could sell this property; and this assignment is confined to that, and does not touch the leases. The surrender of the leases was another thing. He agreed to give them up because he was unable thereafter, as he had been before unable, to pay rent. He assigned the property to pay past rent, —wholly different matters, different contracts. Therefore this assignment could not exclude the oral agreement to surrender. I think the evidence shows not only an agreement to surrender, but an actual surrender of possession under it. Clearly, Otto agreed to surrender, and he allowed Clator and the trustee to go into the...